Digital Information and Records Present New Probate Questions

by Joseph C. Maya on Apr. 05, 2017

Estate Estate  Trusts Estate  Wills & Probate 

Summary: Blog post discussing the implications of social media on the probate process.

To speak with an experienced probate law attorney, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

What is going to happen to your email, Twitter and Facebook accounts, and digital property, when you die?

When preparing a will, it is common to plan for what is going to happen to ones house, money and valuables like jewelry, but less common to consider one's digital assets, or electronic records.

Lawmakers recently tackled the issue with the passage of a bill, An Act Concerning the Connecticut Revised Fiduciary Access to Digital Assets Act. The General Assembly has approved it, and as of May 19, it awaited Gov. Dannel Malloy's approval.

The legislation gives Connecticut residents the power to plan for the management and disposition of their digital assets as they can for their tangible property, by providing instructions in a will, trust or power of attorney, or by using online planning tools.

If signed by Malloy, the law will go into effect on Oct. 1.

The legislation outlines how someone can use an online tool to direct some or all of their digital assets to a designated recipient. An individual may also address their wishes regarding their digital assets in a will, trust or other record. However, the online tool may override such documents, if a user can modify it at any time.

Lawmakers have outlined in detail the process for accessing digital assets after an individual's death, such as through written requests, and by providing a certified copy of the death certificate of the user, for example.

The Connecticut Bar Association's Estates and Probate Section was involved in providing input to lawmakers on the legislation. According to the association, digital assets can be extremely valuable, and it noted how domain names, for example, have sold for millions in some cases. It cited the $35 million price tag for the domain Insurance.com in 2010 as an extreme example.

Digital assets can also include electronic documents, music, movies, games and the virtual currency bitcoin.

Suzanne Brown Walsh, a partner at Murtha Cullina in Hartford, who is a section executive committee member, said the bill was necessary because laws haven't kept pace with technological advances in the Internet age.

According to Walsh, while Connecticut citizens have had complete control over what happens to their tangible and intangible private property when they die or lose their legal capacity, that hasn't been the case for their digital assets.

Walsh noted there have been cases where fiduciaries were denied access to a deceased individual's digital assets. This legislation solves that problem, she said.

Getting Access

If a fiduciary hasn't been given access, it can cause problems in various scenarios, according to Walsh. If an author died who had an unpublished manuscript in an iCloud account, a fiduciary might have difficulty accessing it in order to finish and publish it, Walsh said. The same situation would apply to artists who store work electronically.

After someone dies, if their social media accounts on LinkedIn or Facebook are still active, they might become the victims of identity theft, according to Walsh.

"Someone needs to go in and erase information, to protect against identity theft," Walsh said.

There are also emotional reasons for survivors to want to take action to either delete or memorialize a social media account.

"Most of us have had a friend die, only to get reminded by Facebook that they are celebrating a birthday," Walsh said.

If an individual has a digital asset that is valuable, it is important to talk to an estate planner, according to Walsh.

"It is up to all of us to write out a consent form, giving your fiduciary your consent to access all of your accounts," Walsh said.

Mark Dost, an attorney with Tinley, Renehan & Dost in Waterbury and a member of the CBA's Estates and Probate Section, said the issue of fiduciary access to a consumer's account should be determined by the consumer.

Dost, like Walsh, provided lengthy testimony to lawmakers on the topic before their vote.

According to Dost, when Internet users open an account or subscribe to a service, they often don't read the "terms of service agreement" before agreeing to the terms. When people "blindly click" on these agreements, they can unwittingly forfeit the right of their agents, executors, and other fiduciaries to access their digital accounts during periods of incapacity and after death, he said.

This legislation remedies the problem by allowing individuals to give their fiduciaries access to their digital assets, according to Dost.

"It also respects users' privacy rights, by enabling individuals to prohibit access to some digital assets, including electronic communications such as email," Dost said. "The act puts the consumer in charge."

A similar bill last year garnered some opposition by the Internet industry. However, recent revisions addressed privacy concerns and any potential conflict with federal privacy law, which prevents companies from sharing information without consent, Walsh said.

The legislation now encourages Internet services to offer online tools that allow a user to name a designated representative to get account access if the user dies or becomes incapacitated.

State Sen. Kevin Kelly, one of the bill's sponsors, is an attorney who handles probate matters, and he said the problem of gaining access to digital assets comes up all the time.

Many people do all their banking online, and don't even get paper statements, he noted. This is convenient during life, but after death, it can be hard for survivors to get information.

"Back in the day, you would just wait for the mail to come to see the person's bank statements," Kelly said. "As society has moved forward in technology, the law has lagged behind. I think this is a good common sense piece of legislation."

Tammy Cota, executive director of the Vermont -based Internet Coalition, a national trade association that represents member companies in state public policy discussions, submitted testimony to lawmakers in March in support of the bill.

"It currently strikes the right balance between protecting internet user privacy with the need for fiduciary access to digital assets," Cota wrote in her testimony.

Cota noted how federal privacy laws protect emails and social media conversations. This new law allows fiduciaries to see the contents of private communications when a decedent expressly has allowed for it through an online tool, will, trust, power of attorney or other written evidence, Cota said.

"This bill rightly prevents companies that store user communications from releasing such information to fiduciaries, unless the decedent had previously consented to the disclosure," Cota wrote.

Other states are working to address the digital asset issue. According to Dost, such states as Florida, Oregon, Tennessee and Wyoming have enacted legislation addressing digital assets, with legislation introduced in 22 other states this year.

If you have any questions or would like to speak to a probate law attorney about a will, trust, or estate matter, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

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Source: Michelle Tuccitto Sullo, New Law Targets Social Media Accounts of Dead; Lawmakers make it easier for survivors to access digital assets of deceased

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